Karingithi v. Whitaker

• Decision Date: 28 January 2019
• Docket Number: No. 16-70885,16-70885
• Citation: 913 F.3d 1158
• Parties: Serah Njoki KARINGITHI, Petitioner, v. Matthew G. WHITAKER, Acting Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

913 F.3d 1158

Serah Njoki KARINGITHI, Petitioner,

v.Matthew G. WHITAKER, Acting Attorney General, Respondent.

No. 16-70885

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 11, 2018 San Francisco, California

Filed January 28, 2019

Ruby Lieberman (argued), Law Office of Ruby Lieberman, San Francisco, California, for Petitioner.

Greg D. Mack (argued) and Leslie M. McKay, Senior Litigation Counsel; Terri J. Scadron, Assistant Director; Joseph H. Hunt, Assistant Attorney General; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

Lonny Hoffman, Law Foundation Professor of Law, University of Houston Law Center, Houston, Texas, as and for Amicus Curiae.

On Petition for Review of an Order of the Board of Immigration Appeals, Agency No. AXXX-XX0-992

Before: M. Margaret McKeown, William A. Fletcher, and Jay S. Bybee, Circuit Judges.

McKEOWN, Circuit Judge:

We consider whether the Immigration Court has jurisdiction over removal proceedings when the initial notice to appear does not specify the time and date of the proceedings, but later notices of hearing include that information. This question is governed by federal immigration regulations, which provide that jurisdiction vests in the Immigration Court when a charging document, such as a notice to appear, is filed. 8 C.F.R. §§ 1003.13, 1003.14(a). The regulations specify the information a notice to appear must contain; however, the time and date of removal proceedings are not specified. 8 C.F.R. § 1003.15(b). Because the charging document in this case satisfied the regulatory requirements, we conclude the Immigration Judge ("IJ") had jurisdiction over the removal proceedings. This reading is consistent with the recent interpretation of these regulations by the Board of Immigration Appeals ("BIA" or the "Board"), see Matter of Bermudez-Cota , 27 I. & N. Dec. 441 (BIA 2018), and the only other court of appeals to reach this issue, see Hernandez-Perez v. Whitaker , 911 F.3d 305, 310–15 (6th Cir. 2018). We also note that the petitioner, Serah Njoki Karingithi, had actual notice of the hearings through multiple follow-up notices that provided the date and time of each hearing.

The Supreme Court recently addressed the required contents of a notice to appear in the context of cancellation of removal under 8 U.S.C. §§ 1229(a), 1229b. Pereira v. Sessions , ––– U.S. ––––, 138 S.Ct. 2105, 201 L.Ed.2d 433 (2018). Pereira was not in any way concerned with the Immigration Court’s jurisdiction. Rather, the Court considered what information a notice to appear must contain to trigger the stop-time rule, which determines whether a noncitizen has been continuously present in the United States long enough to be eligible for cancellation of removal. Id. at 2110 ; see also 8 U.S.C. § 1229b. Unlike the stop-time rule, the Immigration Court’s jurisdiction does not hinge on § 1229(a), so Pereira ’s narrow ruling does not control our analysis. We conclude that the IJ had jurisdiction over Karingithi’s removal proceedings and that the Board properly denied her petition. We address the merits of Karingithi’s petition for review in a separate memorandum disposition filed contemporaneously with this Opinion.

BACKGROUND

Karingithi, a native of Kenya, entered the United States on July 7, 2006 on a tourist visa. She violated her visa’s terms by remaining in the United States past its six-month limit. On April 3, 2009, the Department of Homeland Security commenced removal proceedings by filing a notice to appear with the Immigration Court, charging Karingithi with removability under 8 U.S.C. § 1227(a)(1)(B). The notice to appear specified the location of the removal hearing. The date and time were "To Be Set." The same day, Karingithi was issued a notice of hearing, which provided the date and time of the hearing.

Karingithi conceded removability, but filed with the Immigration Court an application for asylum, withholding of removal, and protection under the Convention Against Torture. In the alternative, she requested voluntary departure. After multiple continuances spanning five years, as well as numerous hearing notices providing the date and time of proceedings, the IJ rejected all four grounds for relief, and ordered Karingithi removed. The BIA affirmed. Karingithi now challenges the IJ’s jurisdiction over her removal proceedings and the BIA’s decision.

ANALYSIS

The Attorney General has promulgated regulations governing removal proceedings, including when jurisdiction vests with the IJ. The relevant regulation, entitled "Jurisdiction and commencement of proceedings," dictates that "[j]urisdiction vests, and proceedings before an Immigration Judge commence, when a charging document is filed with the Immigration Court." 8 C.F.R. § 1003.14(a). A charging document is "the written instrument which initiates a proceeding before an Immigration Judge," and one of the enumerated examples is a notice to appear. 8 C.F.R. § 1003.13.

Because both the regulation and a statutory provision, 8 U.S.C. § 1229(a), list requirements for the contents of a notice to appear, we consider whether their requirements differ, and if so, which authority governs the Immigration Court’s jurisdiction. According to the regulation, a notice to appear must include specified information, such as "[t]he nature of the proceedings," "[t]he acts or conduct alleged to be in violation of law," and "[n]otice that the alien may be represented, at no cost to the government, by counsel or other representative." 8 C.F.R. § 1003.15(b). Importantly, the regulation does not require that the time and date of proceedings appear in the initial notice. See id. Rather, the regulation compels inclusion of such information "where practicable ." 8 C.F.R. § 1003.18(b) (emphasis added). When "that information is not contained in the Notice to Appear," the regulation requires the IJ to "schedul[e] the initial removal hearing and provid[e] notice to the government and the alien of the time, place, and date of hearing."¹ Id.

Section 1229(a) requires that "[i]n removal proceedings ... written notice (in this section referred to as a ‘notice to appear’) [ ] be given" to the noncitizen. The statute goes on to specify what information the notice must contain, and it largely mirrors the regulation’s requirements with one significant difference: it requires, without qualification, inclusion of "[t]he time and place at which the proceedings will be held." 8 U.S.C. § 1229(a)(1)(G)(i). Notably, the statute is silent as to the jurisdiction of the Immigration Court. See generally 8 U.S.C. § 1229.

Karingithi argues that if a notice to appear does not state the time for her initial removal hearing, it is not only defective under § 1229(a), but also does not vest jurisdiction with the IJ. The flaw in this logic is that the regulations, not § 1229(a), define when jurisdiction vests. Section 1229 says nothing about the Immigration Court’s jurisdiction. And for their part, the regulations make no reference to § 1229(a) ’s definition of a "notice to appear." See generally 8 C.F.R. §§ 1003.13 – 1003.14. If the regulations did not clearly enumerate requirements for the contents of a notice to appear for jurisdictional purposes, we might presume they sub silentio incorporated § 1229(a) ’s definition. Cf. Sorenson v. Sec’y of Treasury , 475 U.S. 851, 860, 106 S.Ct. 1600, 89 L.Ed.2d 855 (1986) ("The normal rule of statutory construction assumes that identical words used in different parts of the same act are intended to have the same meaning." (internal quotation marks omitted) ). But the plain, exhaustive list of requirements in the jurisdictional regulations renders that presumption inapplicable here. Not only does that list not include the time of the hearing, reading such a requirement into the regulations would render meaningless their command that such information need only be included "where practicable." 8 C.F.R. § 1003.18(b). The regulatory definition, not the one set forth in § 1229(a), governs the Immigration Court’s jurisdiction. A notice to appear need not include time and date information to satisfy this standard. Karingithi’s notice to appear met the regulatory requirements and therefore vested jurisdiction in the IJ.

Pereira does not point to a different conclusion. To begin, Pereira dealt with an issue distinct from the jurisdictional question confronting us in this case. At issue was the Attorney General’s statutory authority to cancel removal of "an alien who ... has been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of" her application for relief. 8 U.S.C. § 1229b(b)(1)(A). Under the statute’s "stop-time rule," the "period of ... continuous physical presence" is "deemed to end ... when the alien is served a notice to appear under section 1229(a)." 8 U.S.C. § 1229b(d)(1). In Pereira , the Court acknowledged that it decided only a single, "narrow question": "If the Government serves a noncitizen with a document that is labeled ‘notice to appear,’ but the document fails to specify either the time or place of the removal proceedings, does it trigger the stop-time rule?" Pereira , 138 S.Ct. at 2110. The Court held it did not, emphasizing multiple times the narrowness of its ruling. See, e.g. , id. at 2110, 2113.

Pereira ’s analysis hinges on "the intersection" of two statutory provisions: § 1229b(d)(1) ’s stop-time rule and § 1229(a) ’s definition of a notice to appear. Id. at 2110. The stop-time rule is not triggered by any "notice to appear"—it requires a "notice to appear under section 1229(a) ." 8 U.S.C. § 1229b(d)(1) (emphasis added). Pereira treats this statutory cross-reference as crucial: "the word ‘under’ provides the glue that bonds the stop-time rule to the substantive time-and-place requirements mandated by § 1229(a)." Pereira , 138 S.Ct. at 2117. There is no "glue" to bind § 1229(a) and the...